Today, the Supreme Court heard oral argument in United States v.Windsor, one of the many cases that has made its way through the Federal Court system over the past several years attacking the Constitutionality of Section Three of the Defense Of Marriage Act, which purports to define marriage for federal law purposes as only a marriage between a man and a woman. The Windsor case concerns the relationship of Edith Windsor and Thea Spyer who were married in Canada in 2007 after 4o years together. Spyer died in 2009 and, because DOMA’s Section Three means that the Federal Government did not recognize their marriage (even though New York State did by the time of Spyer’s death) and Windsor was required to pay over $300,000 in estate taxes from what she had inherited as Spyer’s surviving spouse. Windsor filed suit challenging DOMA and won at both the District Court and the Court of Appeals levels. Today, in oral argument, there appeared to be at least some sign that DOMA is in serious trouble in the Supreme Court:
WASHINGTON — A majority of the justices on Wednesday asked skeptical questions about the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day.
Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage and the rights of children to the states.”
That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.
If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody.
Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”
Justice Sonia Sotomayor said the law violated equal protection principles. “You’re treating married couples differently,” she said,
Paul D. Clement, a former solicitor general who is defending the law on behalf of House Republicans because the Obama administration has concluded it is unconstitutional, argued that the federal government was entitled to use a uniform definition of marriage across the nation in connection with more than 1,000 federal laws and programs regulating everything from taxes to Social Security benefits.
Mr. Clement said that those laws and programs had originally been passed with the traditional definition of marriage in mind and that when Congress approved the Defense of Marriage Act, it was worried that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too. Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.”
Justice Elena Kagan said there was something else at work
“Do we really think Congress was doing this for uniformity reasons or do we think the Congress’s judgment was infected by dislike, by animus, by fear?” she asked. She read a quote from the House record at the time the law was passed suggesting that lawmakers wanted to show “moral disapproval of homosexuality.”
Mr. Clement responded: “Of course the House report says that. I think if that’s enough to invalidate the statute you should invalidate the statute. But that’s never been enough.” He said that “just because a couple legislators may have had an improper motive” did not mean there was not a legitimate purpose to the law.
The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. That argument was murky and muddled, and many of the questions from the justices suggested that they were looking for a way to duck the central issue.
By comparison, Wednesday’s case was modest and the arguments clear. The court heard a preliminary 50-minute session on threshold issues, but they did not seem to threaten to send the case off the rails.
The court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The problem, she said, is that both sides want the same result. “There is not adversity,” she said. “They are in agreement.”
To be sure, there were some sharp questions.
“This is wholly unprecedented,” Justice Antonin Scalia said of the odd way the case had reached the court. “You’re asking us to do something we’ve never done before to reach this case.”
“It’s unusual,” acknowledged Srikanth Srinivasan, a deputy solicitor general.
“No, it’s not unusual,” Justice Scalia said. “It’s totally unprecedented.”
After an appeals court struck down the challenged part of the law, the outcome the administration had urged, the Justice Department nonetheless appealed, saying the issue warranted an authoritative decision from the Supreme Court.
Chief Justice John G. Roberts Jr. and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself.
“I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.
There were also questions about whether House Republicans had standing to defend the law. “Nobody is suggesting,” Mr. Clement said, “that this is a best-practices situation.” But there did not seem to be a consensus on the bench to avoid deciding the constitutionality of the law.
Dismissing the case on standing grounds would probably have the effect of letting stand the appeals court ruling that threw out the law. But while the conservative justices expressed skepticism that the court should be deciding the matter, Justice Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.”
To answer the Chief Justice’s point, the reason that the President is enforcing DOMA while at the same time declining to support it on appeal is really quite simple. If the Administration refused to enforce DOMA by, say, ordering the Internal Revenue Service to recognize Ms. Windsor’s marriage and not force her to pay the estate taxes resulting from the death of her spouse, then it would be blatantly ignoring a law that was duly passed by Congress and signed into law by President Clinton. This would be a direct abrogation of the President’s obligations under the Constitution to “take care that the laws be faithfully executed.” Presidents do not have the option to simply ignore the law when they disagree with it and doing so would, potentially, be an impeachable offense. By contrast, as I’ve noted before, the decision by the Administration not to defend DOMA on appeal is both not unprecedented and completely within the Executive Branch’s discretion. It seems doubtful that the Court will knock this case own on standing, so in some sense these comments by Roberts don’t matter, but the fact remains that he sets up a completely false dichotomy there, and I’m pretty sure he’s smart enough to know it.
As for the argument itself, Lyle Denniston’s recap makes it clear that the Defense of Marriage Act appears to be on very shaky ground:
After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.
Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.
Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.
Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.
There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.
(…)
In order to rule on DOMA’s validity, the Court has to be persuaded that it has a genuine controversy before it — that is a real legal dispute between opposing parties, each of whom has a direct interest in the outcome. Whether it has that was the issue, with Professor Jackson arguing that the administration wants the same thing as Ms. Windsor — the nullification of DOMA Section 3 — so the Court has no jurisdiction over the government’s appeal, and arguing that the House GOP leaders have no direct harm they can claim even if DOMA is nullified.
The Justices seemed somewhat at odds over whether they do have the authority to go ahead with this case, so the possibility remained that the Court in the end could choose not to decide the merits of the law’s validity. That portion of the argument focused on just who in Congress, if anyone, could be in court to defend a federal law when the executive branch chose not to do so.
Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Mrs. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate. But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.
It did not appear, however, that Clement had succeeded in contending that the House GOP leaders (BLAG) had a full right to be in court to defend DOMA in the absence of a defense by the government.
Ilya Shapiro has these observations:
The jurisdictional arguments were even more complicated today, but if the Supreme Court reaches the merits, there seem to be five votes to strike down DOMA’s Section 3: the four “liberal” justices on equal protection grounds and Justice Kennedy because the federal government is intruding on state authority to regulate marriage. Now, my prediction is worth what you paid for it – and one or more of the liberals (or even Chief Justice Roberts) could join Kennedy to make the resulting ruling less stark – but there are good reasons to believe that a 4-1-4 merits decision is possible even if Kennedy is ultimately persuaded by the equal protection claim. To the extent the swing justice is wary of the political implications of striking down all states’ marriage laws, then he might not want a ruling that would set the logical precedent for such a move. There was a definite sense at the Court that the provision of DOMA that limits marriage to opposite-sex couples for purposes of federal law isn’t long for the world, but a 4-1-4 decision would have no controlling theory.
As I’ve said before, trying to lead the tea leaves of what’s going on behind the closed doors of the Supreme Court based on oral argument is quite often an ill advised move. Nonetheless, the questioning from both today and yesterday seems to indicate that the Justices, and most importantly Kennedy, are concerned about moving too quickly on a political issue that still continues to divide the public. That’s why I think it’s unlikely that we’ll see the broad, applicable nationwide, ruling on Proposition 8 that gay rights proponents are hoping for. Instead, we’re likely to see a holding that is more limited in it’s applicability, perhaps only to those states that bar same-sex marriage but recognize civil union, perhaps only to California. It’s also possible that the Court will find that there’s a lack of standing on the part of the parties trying to defend the law, meaning that the appeal itself is moot. As I explained yesterday, this would leave Proposition 8 invalidity in California but there would be only minor precedential impacts for other jurisdictions.
It’s possible that the same thing could happen for DOMA. The Court could decide that the House GOP Leaders lack standing to defend the law on appeal, thus meaning that the case is dismissed with no decision on the merits. The impact of such a decision, though,would mean that we’d end up with a patchwork of laws with some Judicial Circuits having ruled that DOMA is unconstitutional and others not having ruled at all (there is no Court of Appeals that has upheld DOMA). This leads to a bizarre problem for the Federal Government where DOMA is invalid in some parts of the country while remaining valid in others. The Justices are fully aware that this would be the impact of a ruling based solely on the standing issue, which I why I suspect that they’d be far less likely to toss the DOMA case on standing grounds than the Proposition 8 case. It’s still possible they’ll do it, of course, but I don’t think these Justices, and specifically Justice Kennedy, would be willing to create legal and judicial chaos just so they can avoid ruling on the merits of the case.
The interesting thing to watch for will be to see how any potential decision works itself out. Assume, for example, that Shaprio is right that we’re at the point where Kennedy would be reluctant to sign on to the Equal Protection argument likely to be championed by the Court’s liberal wing and instead would write an opinion to strike down DOMA on federalism grounds (a judgment the liberals would sign on to to create a functional majority, although a case that doesn’t have a clear precedent). The interesting thing to watch in that case would be whether one of the Court’s conservative judges would end up joining Kennedy’s Federalism argument and thus turn a 4-1-4 case into a 4-2-3 case. The most likely candidate for this would seem to be Chief Justice Roberts, but we’ve also seen Alito, Scalia, and Thomas champion federalism before and one or more of them might be potentially persuadable if they saw the Kennedy opinion as a vehicle for reviving the 10th Amendment.
As with the Proposition 8 case, we’ll likely get this opinion in late June. Until then, you can listen to the oral argument here, or read the transcript which I’ve embedded below.
